Jan. 14, 2014

Amy Cochran of Enosburg Falls prays as she joins other pro-Life demonstrators outside Planned Parenthood's health clinic in Burlington on Wednesday, July 18, 2012. A buffer zone around the clinic's entrance was recently enacted by the Burlington City Council. / GLENN RUSSELL/FREE PRESS

Pro-Life demonstrators Rita Mantone of Underhill (left) and Bridget Mount of St. Albans gather outside Planned Parenthood's health clinic in Burlington on Wednesday, July 18, 2012. A buffer zone around the clinic's entrance was recently enacted by the Burlington City Council. / GLENN RUSSELL/FREE PRESS

Two while lines on the sidewalk outside of Planned Parenthood on St. Paul Street in Burlington define a buffer zone, a law enacted by the city council last year. The zone prohibits protesters from getting within 35-feet on the organization's front door. / RYAN MERCER/FREE PRESS

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When the U.S. Supreme Court hears oral argument Wednesday about protest-free buffer zones at reproductive health clinics in Massachusetts, some Vermonters will be watching closely to see how the case could impact a similar law in Burlington.

Three of the plaintiffs in a lawsuit against the Burlington ordinance — Agnes Clift, Molly Jesse and Bridget Mount — drove to Washington, D.C., on Tuesday to attend the oral arguments, said fellow plaintiff Amy Cochran.

The women have argued that the Burlington ordinance, passed in 2012 with the stated purpose to “ensure that patients have unimpeded access to reproductive health care services,” infringes on their free speech rights.

Their lawyer, Michael DePrimo, is also one of the lawyers representing the plaintiff in the Supreme Court case, McCullen v. Coakley. He said in an interview that the two cases are tied together.

“The Supreme Court really is going to decide the life or death of the Burlington ordinance,” DePrimo said. He lives in Connecticut and is connected with with the Alliance Defending Freedom, a Christian legal group based in Scottsdale, Ariz.

Pietro Lynn, a lawyer representing Burlington in its defense of the buffer zone ordinance, also said that the Supreme Court case could have ramifications in the city.

“The legal issues in the two cases are very similar,” Lynn said. “Whatever principles are derived from the Massachusetts case in front of the U.S. Supreme Court will probably have application in our case.”

Judge William K. Sessions III ruled in February that the Burlington ordinance is constitutional and can continue to be enforced. The case is continuing in the U.S. District Court in Vermont, and the city filed a request for summary judgment in December.

“It’s really hard to predict what the U.S. Supreme Court’s going to do,” Lynn said. “If they say buffer zones entirely are never permissible, that’s a problem for the Burlington ordinance. ... If the U.S. Supreme Court takes some middle ground, then obviously it’s going to depend on where that ground lies and how it applies to our case.

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“And of course if they decide that buffer zones are permissible ... then we’re in very good shape and I doubt there’s going to be any change at all,” Lynn added.

Cheryl Hanna, a professor at Vermont Law School who specializes in constitutional law, said the Supreme Court case was likely to focus on the principles of free speech more than the specific consequences of the speech.

She said cases like McCullen v. Coakley are difficult because they reflect the “culture wars” and the divide in public opinion about free speech, privacy and abortion.

“I think on one side is the right of patients to access clinics without having to endure blockages or harassment,” Hanna said. “On the other side, it’s the right of speakers to convey their messages to the audience to which they believe it most matters.”

Two linked laws

Burlington’s ordinance, passed in 2012, established a 35-foot buffer zone around reproductive health clinics where protesters may not gather.

People who “knowingly congregate, patrol, picket or demonstrate” in Burlington’s buffer zones — other than people entering or exiting the clinic, clinic employees, municipal employees, people walking by or others with permission of the property owner — can face a civil fine from $50 to $500.

The six women who oppose abortion and have challenged the ordinance have demonstrated at the Planned Parenthood of Northern New England clinic on St. Paul Street, including prayer, conversations with patients, handing out leaflets, holding signs and singing, as described in court documents.

Nick Carter, a spokesman for the Planned Parenthood of Northern New England office in Vermont, said the organization was “fairly confident” that the Burlington ordinance would continue to stand after the Supreme Court decision.

“It’s made a really big difference for our patients, staff and the community,” Carter said. He said that before the buffer zone was in place, the clinic had seen patients who felt intimidated by protesters, and others who were “physically impeded” from entering.

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“Individuals that want to voice their opinion are still able to do so,” Carter said.

The Massachusetts state law under discussion at the Supreme Court was adopted in 2007 and states that no one may “knowingly enter or remain on a public way or sidewalk,” with some exceptions, within 35 feet of a reproductive health care facility.

Though similar, the two laws are not identical.

For example, the Massachusetts law applies to any place, “other than within or upon the grounds of a hospital, where abortions are offered or performed.” The Burlington ordinance does not specifically mention abortion, but applies the ordinance to any place where authorized persons “provide health care services or health care counseling relating to the human reproductive system.”

DePrimo and the other lawyers arguing against the Massachusetts law in the Supreme Court say the law infringes on free speech.

“The Act dispenses with any effort to target only unwanted physical approaches,” they wrote in a court document. “Instead, it creates large painted zones on public sidewalks near abortion clinics in which traditionally protected speech — even consensual conversation or silent prayer — is forbidden.”

The attorneys representing Massachusetts Attorney General Martha Coakley wrote in court documents that the state buffer zone law had been the only measure that had successfully provided protection around the clinics.

“The Legislature took this action in response to 20 years of weekly, targeted protest at facilities across Massachusetts that blocked doors and driveways and made patients, staff and passersby feel unsafe,” the document states.

Though opponents argue that the Massachusetts law is not content-neutral because they say it effectively limits speech about the one topic of abortion, the state lawyers say that’s not the case.

“The Act does not directly regulate speech because speech was not the problem the Legislature was trying to correct,” the document states. “Rather, the decades-long problem was the physical blocking of facility doors and driveways and compromised public safety.”

The Supreme Court decision in this case could come this spring or summer.

Allen Gilbert, executive director of the American Civil Liberties Union of Vermont, said three states in the nation have passed buffer zone legislation, in addition to municipalities that, like Burlington, have passed their own ordinances.

“We think the way the buffer zone was constructed was constitutional,” Gilbert said of the Burlington law. “To us it strikes that very difficult balance between two competing rights: the right of free speech and the right of people to be left alone and to make medical decisions privately.”

Cochran, one of the opponents in Burlington, said in an interview Tuesday that she had hoped to travel to Washington to hear the Supreme Court case but was not able to go.

“Besides, someone has to go to Planned Parenthood (on Wednesday), so that’ll be me,” Cochran said. “I’m curious to see how this ends.”